Harm to the Environment: The Right to Compensation and the Assessment of Damages

Harm to the Environment: The Right to Compensation and the Assessment of Damages

Harm to the Environment: The Right to Compensation and the Assessment of Damages

Harm to the Environment: The Right to Compensation and the Assessment of Damages

Synopsis

This collection of essays by a distinguished group of international environmental law experts focuses on the growing and controversial international debate about environmental damage. The contributors address the current state of the law in the US and Europe and pose questions about its future development.

Excerpt

In international and comparative environmental law the notion of environmental damage is gaining increasing interest. Rules on liability and compensation enter into the picture when administrative etc. regulations have proved ineffective in preventing damage. When damage has occurred, interest is focused on the question of compensation, inter alia, in the form of reinstatement of the environment (for instance, restocking the waters with young fish, replanting new flora, and cleaning the banks after a pollution incident) or, if this is not possible or if it is not economically feasible, by making financial compensation.

Environmental impairment (for instance, an explosion of an industrial plant) may cause extensive personal injuries and property damage, and economic losses (both consequential and pure economic losses), and the damage to the environment per se, that is, the common goods of nature (res communis omnium: soil, groundwater, habitats, species of flora and fauna, aesthetic and natural values, etc.) can be difficult to evaluate and to 'repair'. Particularly in US law methods have been developed to put a monetary value on natural resources. But some of these valuation methods are highly controversial -- not least from an international point of view.

The question of compensating environmental damage challenges traditional rules and concepts of tort law. Such damage does not fit neatly into the categories in existing rules, which tend to classify damage according to who can claim redress. A progressive approach presupposes a critical and analytical review of the conceptual framework. For instance, the notion of property damage has to be adapted to the needs of modern environmental law. Furthermore, the need for a new approach concerning compensation for non-economic dimensions of environmental damage should be discussed.

However, such efforts are impeded by the fact that the legal problems pursuant to environmental impairment are solved in diverse ways in different countries. An environmental impairment may have transboundary consequences, and thus affect several legal systems (for instance, Amoco Cadiz, 1978, Chernobyl, 1986, and Sandoz, 1986). There are different systems of liability, for instance, regarding the designation of the person liable, notions like damage and injury to the environment, the causal relationship, limitations of liability, etc.

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